Wakilii

Mackay v Attorney General and 3 Others (Misc Cause No. 12 of 2018)

High Court · [2022] UGHCCD 104 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional application seeking redress and compensation for alleged violation of fundamental rights to personal liberty and freedom from torture
Decision
Application dismissed on procedural and evidentiary grounds

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Application dismissed on two grounds: first, service was effected 18 months after endorsement by the Registrar, outside the 21-day period prescribed by O.5 r.1(2) CPR read with O.49 r.2 CPR, with no application for extension of time; second, the applicant failed to adduce cogent corroborative evidence to prove allegations of torture on a balance of probabilities, as medical documents and photographs remained hearsay without supporting affidavits from medical personnel or eyewitnesses.

Outcome

Application dismissed on procedural and evidentiary grounds

Facts

On 16 March 2018, the applicant was arrested by police officers reinforcing a court bailiff executing a warrant against him as a judgment debtor. He alleged that police officers severely beat him at Masindi General Hospital, causing fractured bones and profuse bleeding, then took him to the Chief Magistrate's Court where he was committed to civil prison while still in pain. He claimed he was taken to prison in a bleeding condition, rejected by the prison officer in charge, referred back to court, then eventually hospitalised at Masindi Hospital from 16 to 19 March 2018. The respondents denied any torture, contending the applicant resisted arrest violently and that only reasonable force was used to take him to court.

Issues

  1. Whether the application is competent.
  2. Whether the applicant's right to freedom from torture, cruel, inhuman or degrading treatment was violated by the agents of the respondents.
  3. What remedies are available to the parties.

Orders

  • The application was served outside the prescribed time from the date it was endorsed by the Registrar without any application for extension of time and as a result, it is liable for dismissal.
  • The applicant has not on a balance of probabilities proved the alleged violation of his rights to freedom from torture, cruel, inhuman and degrading treatment by the agents of the 1st Respondent.
  • The application is dismissed with costs to the 1st and 2nd Respondents.

Rules and key headnotes

Civil Procedure — Service of Process — Time Limits for Service
The reference to the procedure of service of summons under O.5 r.1(2) CPR applies to service of hearing notices and applications. Service must be effected within 21 days from the date of endorsement by the Registrar, and this rule is of strict application. Failure to serve within the prescribed time without seeking extension of time renders the application liable for dismissal.
Civil Procedure — Service of Process — Applicability of O.49 r.2 to Miscellaneous Causes
Order 49 rule 2 CPR, which requires that all orders, notices and documents be served in the manner provided for service of summons under O.5 r.1(2) CPR, applies to miscellaneous applications and causes. The claim that service requirements under O.5 r.1(2) do not apply to miscellaneous matters is not convincing.
Human Rights — Torture — Non-Derogable Right
Freedom from torture and cruel, inhuman or degrading treatment or punishment is a non-derogable right under Article 44(a) of the Constitution of Uganda. Torture is considered barbaric and incompatible with civilized society and cannot be tolerated under any circumstances.
Evidence — Burden of Proof — Standard of Proof in Fundamental Rights Cases
Where an applicant alleges torture, being a grave allegation considered one of the most serious crimes against humanity, the applicant is required to adduce cogent evidence to prove such claims on a balance of probabilities. The burden lies upon the party who wishes the court to believe in the existence of the facts asserted.
Evidence — Documentary Evidence — Hearsay and Admissibility
Copies of medical treatment notes and photographs, when contested, remain hearsay and inadmissible in the absence of affidavits from the authors, being the medical doctor who examined and treated the applicant and the photographer. Section 66 of the Evidence Act governs the admissibility of such documentary evidence.
Evidence — Corroboration — Absence of Corroborative Evidence
Where an applicant deposes a detailed account of alleged torture at multiple locations including a hospital, court and prison, the absence of any corroborative affidavits from relatives, friends, eyewitnesses, or officials present at the scenes undermines the applicant's case. Failure to produce corroborative evidence from available witnesses may be fatal to proving allegations of torture.

Legislation cited (15)

Cases cited (6)

  • Michael Mulo Mulaggussi v Peter Katabalo (H.C Misc. Appeal No. 006 of 2016)
  • Edison Kanyabwera v Pastori Tumwebaze [2005] EA 86
  • R.H.K Ddungu v The Co-operative Bank Ltd (in liquidation) (H.C Misc. Cause No. 33 of 2012)
  • Kazooba Francis v M.K Creditors and 2 Others (H.C.M.A No. 3 of 2016 and No. 539 of 2016)
  • Asp. Mugarura Steven v CP. Herman Owomugisha and Another (H.C Misc. Cause No. 419 of 2017)
  • Tenywa v Uganda [1967] EA 102

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Mackay v Attorney General and 3 Others (Misc Cause No. 12 of 2018) [2022] UGHCCD 104 (7 January 2022)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.